Trump wants to end birthright citizenship. A judge he appointed says 'uh, no'

By Deanna Paul

The Washington Post|

Oct 30, 2018 | 5:20 PM

Judge James C. Ho, who was appointed by President Donald Trump to the U.S. 5th Circuit Court of Appeals, has said that a constitutional amendment was the exclusive way to restrict birthright citizenship. (Tom Williams/Roll Call)

Days before the midterm elections, President Donald Trump claimed that he is preparing an executive order to end birthright citizenship. But Judge James C. Ho, a recent Trump appointee, may stand in his way.

“Birthright citizenship is guaranteed by the 14th Amendment. That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers,” the U.S. circuit judge of the U.S. Court of Appeals for the 5th Circuit wrote in a 2006 law review article. Contrary to Trump’s announcement Tuesday, Ho said that a constitutional amendment was the exclusive way to restrict birthright citizenship.

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“Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution,” Ho said in a 2011 opinion piece published by The Wall Street Journal, reinforcing his earlier position.

There are many constitutional law issues that liberals and conservatives don’t agree on. Birthright citizenship is not one of them, according to South Texas College of Law Houston professor Josh Blackman.

The 14th Amendment’s citizenship clause — adopted in 1868, when the amendment was ratified — was intended to be a sweeping repudiation of the Supreme Court’s infamous 1857 Dred Scott decision, which held that slaves and their descendants, whether emancipated or enslaved, were not U.S. citizens.

The amendment begins: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

There is a broad consensus among legal experts that the key phrase — “subject to the (U.S.) jurisdiction” — is conclusively resolved, Blackman told The Washington Post.

This includes anyone required to obey U.S. law, meaning everyone except three narrow classes of noncitizens: Native Americans on Native American reservations, foreign diplomats in the country through their official capacity, and enemy soldiers on U.S. soil, said Stephen Vladeck, a constitutional law expert and professor at the University of Texas School of Law.

Ho concurred, writing that the plain meaning of the 14th Amendment was clear, and that “text, history, judicial precedent, and executive branch interpretation confirm that the citizenship clause reaches most U.S.-born children of aliens, including illegal aliens.”

The Supreme Court seconded this interpretation of the clause in a series of cases.

In 1898, the court embraced the narrow reading Ho argued when it confirmed that San Francisco-born Wong Kim Ark was entitled to birthright citizenship under the 14th Amendment, even though the child’s Chinese parents were not U.S. citizens.

The case did not explicitly present the question of birthright citizenship for the children of people in this country illegally, but, Ho wrote, any doubt was put to rest in 1982.

In Plyler v. Doe, the Supreme Court held that Texas could not prevent children of people in this country illegally from receiving the state-funded public school education offered to other students. “Plyler construed the 14th Amendment’s Equal Protection Clause, which requires every state to afford equal protection of the laws ‘to any person within its jurisdiction,’ ” Ho wrote.

Ho did not immediately return a message left with the head clerk at the Court of Appeals for the 5th Circuit.

With midterm elections next week, experts believe Trump’s announcement Tuesday was a way to gin up support from his voter base, anger his critics and distract from events such as Saturday’s mass shooting at a Pittsburgh synagogue or a lawsuit filed Monday alleging that the Trump Foundation engaged in massive fraud.

“I don’t think Trump’s proposal is a serious one; surely his lawyers have said the same thing,” Vladeck said. “Birthright citizenship is about the very narrow subset of immigrants who come into the country and have babies. It has long been part of the reactionary anti-immigration platform. There’s no other obvious reason why it’s coming up this week.”

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Other experts, such as Blackman, posit that instead of taking away citizenship, Trump might focus on something more mundane, such as ending benefits provisions for U.S.-born children of undocumented immigrants.

Many nations do not have birthright citizenship but define citizenship by virtue of one’s parents.

Despite what Trump may have suggested Tuesday, governing U.S. citizenship is not the sole province of the president. It’s the province of the federal government, not the executive.

As Ho, his appointee, wrote in 2011: “Many Americans have sincere concerns about the rule of law. But there are many tools available to combat illegal immigration. Surely we can do so without wasting taxpayer funds on a losing court battle, reopening the scars of the Civil War, and offending our Constitution and the rule of law.”

The Washington Post

Deanna Paul covers national and breaking news for The Washington Post. She spent six years as a New York City prosecutor.